If that post title sounds familiar to you, it's because the Fifth Circuit addressed the same issue several weeks ago in United States v. Garcia. So why another published opinion so soon? Perhaps because Williams presents a slightly different factual scenario.

Recall that in Garcia, the defendant reached a (c)(1)(C) agreement that limited the court to a sentence within a range bounded by a stipulated minimum and the high end of whatever the Guidelines range worked out to be. Noting a wooly circuit split over whether a sentence resulting from a (c)(1)(C) plea was "based on" the Guidelines, for purposes of 18 U.S.C. § 3582(c)(2), the court ultimately concluded that "answering that question requires that we examine the nuances of both the plea agreement and the sentencing transcript in each particular case." In so doing, the court concluded that Garcia's sentence was based on the Guidelines range.

Change the facts a little, and we have Williams, and a different result. Instead of giving the court a range to work with, the (c)(1)(C) agreement here specified a particular sentence: 192 months. After once again canvassing the relevant authority from other circuits, and applying Garcia, the court spake:

In this case, we need not adopt a categorical rule regarding whether sentences pursuant to Rule 11(c)(1)(C) plea agreements are in all cases “based on” the Guidelines. A review of the plea agreement, sentencing record, and applicable guidelines demonstrates that Williams’s sentence was not “based on” the subsequently amended crack-offense guidelines. Williams stipulated to a sentence of 192 months, whereas the guidelines range for his crime would have been 360 months to life. Even under the newly amended Guidelines, his sentencing range would be 324 to 405 months. Thus, Williams’s sentence was significantly lower than the then-existing guidelines range and is still significantly lower than the post-amendment guidelines range. Furthermore, the plea agreement never stated that the stipulated sentence depended on, or was even connected to, the applicable sentencing range. Likewise, a review of the sentencing transcript does not suggest that the district court based its decision on a guideline calculation. While the guidelines range may have affected the plea negotiations, we have never held that such a tenuous connection is sufficient to establish that a defendant’s ultimate sentence was in fact “based on” the Guidelines, as that term is used in § 3582(c). We decline to do so today. Therefore, the district court did not err when it found that Williams’s sentence was not subject to modification under § 3582(c).

But what if it had erred?

Even if Williams’s sentence were deemed to be “based on” the Sentencing Guidelines, and thus eligible for reduction under § 3582(c), the district court did not abuse its discretion in denying the motion for a reduced sentence. The policy statement accompanying § 3582(c)(2) states that “[i]f the original term of imprisonment imposed was less than the term of imprisonment provided by the guidelines range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range . . . may be appropriate.” As we explained in United States v. Cooley, “[e]ven though the district court may grant a comparable sentence reduction, however, it is not compelled to do so.” The district court in the present case concluded that it did not have authority to reduce Williams’s sentence. However, the district court ruled in the alternative, as well, stating that even if it had authority to reduce the sentence, it would not do so because the “sentence of months is already significantly below his ‘modified’ range of 324–405 months, and there is no adequate reason why his sentence should be lowered further.” We agree. Williams identifies no convincing reasons why he is deserving of a sentence reduction. Therefore, the district court did not abuse its discretion in denying Williams’s motion for a reduced sentence.

An issue the opinion does not address: what if the district court had authority to do a full Booker resentencing, and did not realize it? Under existing Fifth Circuit law, the court did not have that authority. But don't forget that the Supreme Court has taken up the question.

Monday, June 14, 2010

Second or Subsequent Simple Possession Not Aggravated Felony Unless Record of Conviction Shows It Was Based on Fact of Prior Drug Conviction

As with so many other common issues in our neck of the woods, you're no doubt familiar with this one if you regularly handle illegal reentry cases. Today the Supreme Court held, reversing a decision from the Fifth Circuit, "that second or subsequent simple possession offenses are not aggravated felonies under [8 U.S.C.] § 1101(a)(43) when . . . the state conviction is not based on the fact of a prior conviction."

How did we get here? You'll recall that the Supreme Court held a few years ago, in Lopez v. Gonzalez, that a state drug offense is not an aggravated felony unless it proscribes conduct that is punishable as a felony under the federal Controlled Substances Act. Simple possession is generally only a misdemeanor under 21 U.S.C. § 844(a), so it's not an aggravated felony. But § 844(a) also provides that a second or subsequent conviction is punishable as a felony, provided that the procedural requirements of § 851 are satisfied. So is a second or subsequent state simple possession conviction an aggravated felony? Some dicta in a Lopez footnote seemed to say so, and a circuit split propagated.

The Fifth Circuit below answered "yes," applying what it understood to be the "hypothetical" approach of Lopez.

Under this approach, as the Court of Appeals understood it,courts "g[o] beyond the state statute’s elements to look at the hypothetical conduct a state statute proscribes." Accordingly, any "conduct" that "hypothetically" "could have been punished as a felony" "had [it] been prosecuted in federal court" is an "aggravated felony" for federal immigration law purposes. In applying this hypothetical approach, the Court of Appeals did not discuss the §851 procedural requirements. Instead, it concluded that because Carachuri-Rosendo’s "conduct" could have been prosecuted as simple possession with a recidivist enhancement under state law—even though it was not—it could have also been punished as a felony under federal law. Thus, in the Court of Appeals’ view, his conviction for simple possession under state law, without a recidivist enhancement, was an "aggravated felony" for immigration law purposes.

So why was that wrong? It "ignores the text of the INA, which limits the Attorney General’s cancellation power only when, inter alia, a noncitizen 'has . . . been convicted of a[n] aggravated felony.' 8 U. S. C. §1229b(a)(3) (emphasis added). The text thus indicates that we are to look to the conviction itself as our starting place, not to what might have or could have been charged." And that means the inquiry is limited to the record of conviction; a court "cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law."

But what about that "hypothetical" approach?

We never used the term "hypothetical" to describe our analysis in [Lopez]. We did look to the "proscribe[d] conduct" of a state offense to determine whether it is "punishable as a felony under that federal law." But the "hypothetical approach" employed by the Court of Appeals introduces a level of conjecture at the outset of this inquiry that has no basis in Lopez. It ignores both the conviction (the relevant statutory hook), and the conduct actually punished by the state offense. Instead, it focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment. As the Sixth Circuit has explained, this approach is really a "‘hypothetical to a hypothetical.’" Not only does the Government wish us to consider a fictional federal felony—whether the crime for which Carachuri-Rosendo was actually convicted would be a felony under the Controlled Substances Act—but the Government also wants us to consider facts not at issue in the crime of conviction (i.e., the existence of a prior conviction) to determine whether Carachuri-Rosendo could have been charged with a federal felony. This methodology is far removed from the more focused, categorical inquiry employed in Lopez.

There's other reasons for the Court's holding, as well:

The "procedural requirements [of § 851] have great practical significance with respect to the conviction itself and are integral to the structure and design of our drug laws." They allow prosecutors a measure of discretion, and many states have similar enhancement provisions that can only be invoked at the prosecutor's insistence. "Were we to permit a federal immigration judge to apply his own recidivist enhancement after the fact so as to make the noncitizen's offense 'punishable' as a felony for immigration law purposes, we would denigrate the independent judgment of state prosecutors to execute the laws of those sovereigns."

"[I]t seems clear that the Government's argument is inconsistent with common practice in the federal courts. It is quite unlikely that the 'conduct' that gave rise to Carachuri-Rosendo's conviction would have been punished as a felony in federal court."

Lenity: "[A]mbiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen's favor. And here the critical language appears in a criminal statute."

But what about that Lopez footnote?

Our decision today is not in conflict with this footnote; it is still true that recidivist simple possession offenses charged and prosecuted as such "clearly fall" within the definition of an aggravated felony. What we had no occasion to decide in Lopez, and what we now address, is what it means to be convicted of an aggravated felony. Lopez teaches us that it is necessary that the conduct punished under state law correspond to a felony punishable under the Controlled Substances Act to be an aggravated felony under §1101(a)(43)(B). But it does not instruct as to whether the mere possibility that conduct could be—but is not—charged as an offense punishable as a felony under federal law is sufficient.

While the opinion is pretty clear—to be an aggravated felony, the alien must have been convicted of recidivist possession, as shown by the record of conviction—it did leave open a significant question:

Indisputably, Carachuri-Rosendo’s record of conviction contains no finding of the fact of his prior drug offense. Carachuri-Rosendo argues that even such a finding would be insufficient, and that a prosecutorial charge of recidivism and an opportunity to defend against that charge also would be required before he could be deemed "convicted" of a felony punishable under the Controlled Substances Act. In the absence of any finding of recidivism, we need not, and do not, decide whether these additional procedures would be necessary.

So that's still out there.

One last point: you may have noticed that Carachuri-Rosendo was an immigration case. But it should apply equally to criminal cases. The Supreme Court has noted that terms that apply in both immigration and criminal cases should be interpreted the same way in both contexts. And the Fifth Circuit readily agreed that Lopez—also an immigration case—applied to the illegal reentry statute and sentencing guideline. Carachuri-Rosendo should be no different.